Sunday, January 11, 2009

I own a small firm. I have four associates, and one lawyer who is of counsel to my firm, Karen Torre. Karen's a great lawyer, but we rarely see eye-to-eye on politics. The other day, she decided to tell the world I am a moron. I pass the column along as an example of bad rhetoric: Call it a failed ad hominem attack. Read on:

Norm Pattis found a new word: “necromancy.” He uses it to disparage the Federalist Society, originalists and those (good) judges who agree that a “living” constitution is really a dead one. Who cares what “dead men” thought?, Norm bleats, in a recent column more suitable for a prison newsletter. He fancies the word, and as much fancies himself, for having conceived it as a put- down of federalists - that he uses it, ad nauseum, every chance he gets - in his columns, during our radio appearances, in our private discussions. But repeating “necromancy” like Rain Man rocking back and forth while watching Judge Wapner in your K-Mart clothes is a poor substitute for intelligent and rational debate. Like an attention-deprived boy who just learned a new, cool swearword and wants to make sure his teachers, parents, aunts, uncles and cousins hear him say it, Norm gets but an indulgent sigh from me.Another colleague who thinks like Norm (or fails to think, like Norm) dared me to give “one example” where Justice Antonin Scalia’s originalism led him to interpret the Constitution in a manner that produced an outcome he personally detested. It took me a second to name one (of many). In Texas v. Johnson, the Supreme Court, by a 5-4 vote, held that Johnson, an unmitigated jerk, had a constitutional right to desecrate the American Flag. Justice Scalia was the tipping vote, notably against the emotional dissent of Justice Stevens. Like many (including, I suspect, Justice Scalia), I’d have preferred that the worthless Johnson be swept down the nearest sewer. But Scalia’s fidelity to the original meaning of the First Amendment carried the day.What say you Norm about such “necromancy”? Given today’s PC culture, in which a new generation of kids believe they have a right to suppression of speech that hurts their feelings, would you insist your “living” constitution follow the new culture? Should Scalia have agreed that flag-burning is so hateful, so provocative, or so emotionally injurious to veterans or the parents of a dead soldier that it should be outlawed and to heck with the “dead” framers? Understanding the historical, revolutionary context of the First Amendment, Justice Scalia refused to consider it a “living” amendment and bend it to suit our (or his) sentiments. What “dead men” knew and thought matters, for their own experience under a tyrannical king and his court gave us the constitution Norm would allow living idiots to undermine.The “Dead,” as Norm likes to call them, understood that future generations of Americans would face a different world, new challenges, changing mores and social conditions. They gave us the means to adapt to that if we chose to do so – a built-in process of constitutional amendment. We have used it rarely and wisely. We used it to give women the vote, and to outlaw slavery. I am amazed at just how many people think women got the vote because some judge (the kind preferred by Norm) issued a “progressive ruling.” (What the heck are we teaching in the public schools??)In my last radio appearance with Norm, he couldn’t wait to use the word “necromancy” in lauding the Kerrigan ruling. Little did he know that the Kerrigan court was interpreting a not-so-old equal protection clause in our state constitution that was drafted, amended and approved by people who are very much still alive (and who disavowed any intent to guarantee gay marriage). So much for Norm’s stupid new word.Norm likes to defend criminals. He files motions to exclude evidence as unconstitutionally gained under the Fourth Amendment, as interpreted by courts with reference to the historical context in which it was included in the Bill of Rights. To free a child molester, Norm invokes the views and values of dead men. Norm, the Necromant - when it suits him and his creepy clients.And here’s another, perhaps more important, difference between us. Unlike Norm’s ghastly and repulsive jokes and glee at Attorney General Mukasey’s collapse while addressing the Federalist Society last month, had it been Justice Stevens instead, the thousands of decent people at that dinner would have done what we all did for Judge Mukasey – join hands and pray that he would stay alive.•